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An Excellent Day for Kyle Rittenhouse Defense at Pre-Trial Hearing

An Excellent Day for Kyle Rittenhouse Defense at Pre-Trial Hearing

We will cover the trial live beginning on November 1.

Welcome to today’s Law of Self Defense content! I am, of course, Attorney Andrew Branca, for Law of Self Defense.

Today I’d like to share with you my perspective on the most recent pre-trial hearing for the Kyle Rittenhouse trial.  That hearing took place on Monday, October 25, and lasted about two and half hours.  As the headline to today’s contents suggests, the hearing was a very good day for the defense—with one glaring exception—and yet another poor day for the prosecution.

I’m sure you’ve all heard my “pound the table” legal adage—if the facts are on your side you pound the facts, if the law is on your side you pound the law, and if neither the facts nor law are on your side you pound the table—and we continue to see little but “pound the table” out of this prosecution so far.

To be more specific, this prosecution faces a considerable dilemma—any objective and emotion-free view of the facts and law, in this case, can only result in the conclusion, to a reasonable degree of legal certainty, that it will not be possible for the state to disprove Kyle Rittenhouse’s legal defense of self-defense beyond a reasonable doubt.

For similar reasons, there is little basis, at least on the legal merits, to believe that the state can prove any of the recklessness charges against Kyle beyond a reasonable doubt.

With respect to the gun charge, who knows what that statutory gun law stew actually means, apparently, so the charge should rightly be dismissed for vagueness—but at worst it’s a misdemeanor.

So if this case were being judged on the legal merits, as it ought to be, there’s little reason to believe that it could possibly result in anything but an acquittal on all charges—absent, of course, a runaway jury, which is always a risk.  Indeed, I expect the prosecution believes a runaway jury is his only hope for a conviction on any charge.

If the prosecution has little foundation in legal merit, that’s consistent with the case being brought for political reasons and not reasons of justice, which in turn suggests the prosecutor leading this case—ADA Thomas Binger—is pursuing the case for political and not legal reasons.

And in pursuing his political prosecution of Kyle Rittenhouse, ADA Binger faces considerable challenges.

First, as noted, he has neither the facts nor the law on his side—as I detailed in my legal analysis soon after the event itself, here:

Kyle Rittenhouse: Attacked! In-Depth Legal Analysis (August 27, 2020)

(Incidentally, all our aggregated Rittenhouse content can be found at lawofselfdefense.com/Rittenhouse.)

Second, opposing counsel—Attorneys Mark Richards and Corey Chirafisi—come across as extremely capable and savvy, and unlikely to simply fumble the case for the state to run with.

Third, Judge Bruce Schroeder is a rigorously fair, old-school trial court judge (and himself a former prosecutor) who appears to lack any political interest in this case whatever—and, most important, has little if any tolerance for theatrics and game playing in his courtroom.

That last is probably a fatal dilemma for Prosecutor Binger, because having neither facts nor law to work with, theatrics and game playing is about all he has left—and that means he finds himself getting repeatedly smacked around and embarrassed in these pre-trial hearings.

If anybody is happy that this trial is scheduled to start on Monday, November 1, it has to be Prosecutor Binger—he surely can’t want to continue going through the painful and humiliating experiences these pre-trial hearings have so often been for him.

In particular, Binger is working desperately to try to have every fiber of context stripped away from Kyle Rittenhouse’s use of force that night of August 25, 2020, because the prosecution’s entire case hinges on the notion Kyle’s use of force having been unreasonable.

The difficulty is that a key defining measure of what reasonable of any conduct is always evaluated within the context of the surrounding circumstances—the totality of the circumstances—and the circumstances surrounding Kyle Rittenhouse the night of August 25, 2020, manifestly make his use of force in self-defense, and his allegedly reckless conduct otherwise, reasonable under the circumstances.

So Prosecutor Binger is between a rock and a hard place.  If the jury is allowed to hear the totality of the circumstances surrounding Kyle’s use of force the night of August 25, 2020, there seems no real prospect that he can convince that jury that he has disproven self-defense beyond a reasonable doubt, nor that Kyle’s conduct was otherwise reckless beyond a reasonable doubt.

Binger attempts to address this challenge in two ways.

First, he tries to introduce irrelevant conduct—such as the video of Kyle’s spoken statements, but no actual use of force, outside the CVS—to degrade the clarity of the actual circumstances surrounding Kyle on that fateful night.  The thinking seems to be along the lines of if you add one drop of poo to a barrel of otherwise pure water, now the whole barrel is poo water.

Unfortunately for Binger, Judge Schroeder correctly excluded the varied “other acts” evidence offered by Binger as either irrelevant or excessively prejudicial or both. So that didn’t work for Binger.

Second, if Binger is unable to taint the actual circumstances of the night in question, he’s going to try to have those actual circumstances stripped out as evidence so that the jury never sees them.

As one example from this past Monday’s hearing:  The police that night told Kyle they appreciated what he was doing.  That’s an undisputed fact, caught on video, but this week Binger fought to have that video excluded from evidence—because he knows the effect that evidence will have on the jury to reinforce the perceived reasonableness of Kyle’s conduct that night.

Unfortunately for Binger, Judge Schroeder recognizes that reasonableness is based upon the totality of the circumstances, and understands that the jury must be provided with evidence of those circumstances if they are to be able to evaluate reasonableness—the reasonableness that is a necessary core component of both Kyle’s use-of-force justification, as well as a key negative element of the three recklessness, charges Binger has brought against Kyle.

Indeed, at times Judge Schroeder’s demeanor towards Binger’s circus-like antics was a little short of contemptuous.

I share that top-level view with you to provide you with a kind of broad framework in which to understand the events of the rather lengthy, two-and-a-half-hour hearing this past Monday.  With that framework in place, let’s step through some of the highlights of the hearing in more detail.

Binger Attempts to Have Officer Amanda Franco Excluded As Defense Witness

One of the witnesses the defense plans to call on behalf of Kyle Rittenhouse is Kenosha Police Officer Amanda Franco.  I don’t know exactly what they plan to have her testify about, but we can be assured that if the defense is calling her as a witness their expectation is that her testimony will be favorable to Kyle.

Prosecutor Binger knows this, too, of course.  So, what to do?  It turns out his answer was to attempt to use an extremely convoluted and not entirely rational basis to try to get Officer Franco excluded as a witness.

And I mean extremely convoluted and not entirely rational.

As background, one of the “other acts” evidence that Prosecutor Binger had sought, unsuccessfully, to inject into this trial involved an incident in which Kyle had come to the defense of his sister, who he saw engaged in a physical confrontation with another young woman.  Binger wanted to introduce this event as evidence that Kyle had a vigilante-like attitude and a practice of injecting himself unnecessarily into other people’s fights.

The defense, particular Attorney Chirafisi argued against the admission of this evidence as being irrelevant to the facts of the case and too remote from the nature and facts of the case, to be admissible

And Judge Schroeder agreed with Attorney Chirafisi.  So, Chirafisi won that argument.  The “sister fight” other acts evidence was ordered excluded.

Now, it turns out that Officer Franco had responded to the scene of the “sister-fight,” and had encountered Kyle there, where they had a cordial conversation. It was because of that encounter that she would recognize him again on the night of August 25, 2020, in arson-lit Kenosha—where she would, again, have a cordial conversation with him.

This past Monday Binger attempted to argue that she should be excluded as a witness about the night of August 25, 2020, because the defense had only called her as a witness in a backdoor attempt to introduce evidence about the “sister fight.”

That’s right, Binger is arguing that the same defense that successfully fought to exclude the evidence around the “sister fight” is now suddenly pulling a fast one to try to get evidence of the “sister fight” into the trial.   Specifically, that the defense was trying to re-litigate (meaning to re-argue) the issue of the “sister fight” evidence, but this time to get it into court, rather than excluded from court.

Here’s that argument by Binger.

If that doesn’t make any sense to you, it didn’t make sense to anyone else either.

Indeed, when asked for a response Chirafisi drily noted, “Judge, I would never re-litigate  a motion that I’ve won.”  Hearing this, Judge Schroeder literally laughed out loud.

Here’s that LOL moment:

Here’s Chirafisi’s response in greater length, and Binger further arguing that Franco’s testimony should be excluded:

When Binger realized he wasn’t getting any traction with this argument in his effort to get Franco excluded, he decided to try a different argument—that her testimony could not be relevant to Kyle’s use-of-force decisions, because she was not present at the precise moment that Kyle made those decisions.

To this the defense counter-argued that she was present in the general area throughout the night, had personal experience with the chaotic circumstances of that night, the same circumstances that the defense will argue makes Kyle’s conduct that night reasonable and not reckless, and therefore her testimony is extremely relevant.

Judge Schroeder didn’t buy the prosecution argument as a good reason to simply exclude her testimony entirely. He conceded that if her testimony began to wander into inappropriate or irrelevant areas, he would sustain objections to those wanderings, but he wasn’t inclined to simply pre-emptively exclude her testimony entirely.

Then Binger tried yet another argument—now his position was that this offered testimony from Officer Franco was really just a backdoor attempt by the defense to put the Kenosha police department on trial, and divert the jury’s attention from the actual defendant, Kyle Rittenhouse.

Chirafisi responded by essentially noting that it was Prosecutor Binger who chose to charge Kyle with three counts of reckless conduct, and that the very jury instructions for recklessness tell the jury to consider the totality of the circumstances—and Officer Franco’s testimony is, again, highly relevant to the totality of the circumstances:

Prosecutor Binger then suggests the defense is making an argument they are not, in fact, making.  He argues that allowing Officer Franco to testify how reasonable Kyle seemed when she encountered him earlier in the evening to then suggest that he must have been acting reasonably when he shot three men later in the evening, is akin to a police officer telling a driver in the afternoon that he’d stopped safely at an intersection to later suggest that the driver was acting reasonably when he ran over three people later that night.

Indeed, if the defense were actually to attempt to make that argument, it likely would be objectionable to have Officer Franco testify for such a purposes. But that’s not the purpose for which her testimony is apparently being offered. Rather, it’s being offered as evidence of the generalized chaos in the area that evening, the area in which all the relevant interactions and confrontations occurred.

Binger further argues that the location where Franco encountered Kyle that night was “behind police lines” and in a relatively safe area, and therefore did not reflect the circumstances as they existed in the more distant location where Kyle is accused of having acted recklessly and to have killed without justification:

Unfortunately, to Binger’s horror, Judge Schroeder took this line of argument as an invitation to talk about the general state of lawlessness in Kenosha that night, and indeed to compel Binger to talk about the general state of lawlessness in Kenosha that night.

In a desperate effort to head off this line of discussion Binger changes arguments again, now claiming that Officer Franco’s testimony offered by the defense is really just a tricky way to suggest to the jury that Kyle had the approval of the police for his conduct that night, including the shooting of the three men and his alleged recklessness:

Judge Schroeder recognizes that it would be impermissible for Officer Franco’s testimony to be offered for the purpose of suggesting generalized police approval of Kyle, but that for the purpose the testimony was being offered by the defense it certainly seemed relevant:

As has become a familiar pattern, Binger then shifted to yet another argument, raising the issue that perhaps it was appropriate for Kyle to be armed and defending property where he encountered Officer Franco, but then he engaged in reckless conduct when he left that location and wandered into the chaos, acting “outside his purview,” to protect a different location.  But Judge Schroeder wasn’t having any of this.

Instead, Judge Schroeder referred to the specific language of the jury instructions on reckless, noted they told the jury to consider a wide variety of circumstances, and that Officer Franco’s testimony was likely admissible for that purpose. Of course, the Judge reserved the right to sustain an objection if the testimony went beyond appropriate bounds while she was on the witness stand, but he denied Prosecutor Binger’s motion to exclude Officer Franco’s testimony entirely.

So, count that as a win for the defense, and a loss for the prosecution.

State Use-of-Force Expert Witness Robert Willis: A Total Dud

Next, the hearing turned to the issue of the state’s use-of-force expert witness Robert Willis, who participated via Zoom.  I will embed the video of the portion of the hearing on Mr. Willis in one large chunk at the end of this section, but I’ll just briefly summarize my observations of this part of the hearing.

Frankly, it was my sense that just about the last thing in the world Prosecutor Binger wanted to do was have Mr. Willis actually have to testify for the state on use-of-force issues.  Unfortunately for Binger, he’d trapped himself into retaining Mr. Willis as an expert, believing it would be necessary to counter the defense use-of-force expert, Dr. Black.

The prospects that any genuine expert in use-of-force could look at the actual evidence in this case and conclude that Kyle’s conduct was unreasonable under the circumstances is vanishingly small—and if they dared to try, they would be crucified on cross-examination by a well-informed defense.  There was nothing about Mr. Willis’ demeanor or testimony in this hearing that suggested to me the wiles to successfully push the prosecution narrative while subject to vigorous cross-examination—and I expect Prosecutor Binger was fully aware of this.

Indeed, with Mr. Willis on Zoom, Prosecutor Binger did far less advocating for Willis as a use-of-force expert than he did continue to argue that he actually simply didn’t believe that use-of-force experts were required at all.

Of course, Judge Schroeder had already said that he found value in the analysis of defense expert Dr. Black, so this line wasn’t going to sell in this courtroom.

Nevertheless, Binger tried to re-argue the “no experts needed” issue yet again, focusing on the claim that no expert looking at the same video that the jury would be shown would see anything that a normal juror couldn’t see, so why need them?

In response to this “no experts needed” issue, the defense pointed out a great many technical types of analysis done by Dr. Black that would not be obvious to a layperson.

Binger then seized the rhetorical life preserver that had been thrown to him. Hey, if Dr. Black was going to limit himself to technical analysis, that was fine with him—he just didn’t want Dr. Black making conclusory statements that Kyle’s use of force was lawful, as that was the ultimate question for the jury to decide.

Of course, Judge Schroeder had long ago, in prior hearings, made clear that he wasn’t going to allow any expert to make some pronouncement on a key issue in the case, like whether Kyle’s use of force was lawful self-defense, period.  So that possibility wasn’t even on the table.  Indeed, the defense announced that they’d never intended to use Dr. Black for such conclusory purposes, but merely for his technical expertise.

You could almost see and hear Prosecutor Binger sigh in relief at this path of escape from his own entrapment of having retained Robert Willis as a use-of-force expert.  He informed the court that if the defense was only going to use their own expert, Dr. Black, as a technical expert, then he didn’t feel he needed his own expert at all, and would the court mind very much if they didn’t actually go through defense cross-examination of MDr. Willis at all?

And that’s how the prosecution avoided what I would have expected to be a huge embarrassment.  Indeed, the defense was frantically chomping at the bit to get at Mr. Willis on cross-examination. When Prosecutor Binger started reading through Willis’ 60-some-page CV, defense Attorney Richards interrupted, said the defense was willing to stipulate to everything in the CV, accept it all as true without objection, but could we please just hurry up and move this along?

Yeah, I laughed out loud.

Even better, when the defense stepped through why Dr. Black’s testimony would be relevant, they also took the opportunity to run through once again their evidence-supported narrative of how Kyle was repeatedly attacked and repeatedly compelled to reasonably defend his life, so that’s worth hearing again all by itself.

I’ve embedded below the video of the entire “use-of-force expert witness” exchange at last Monday’s hearing.  Amazingly, this line of conversation circled the bowl for nearly a full hour before finally being flushed, much to Prosecutor Binger’s apparent relief.  Here’s that near-hour:

So, ultimately the state withdrew its use-of-force expert Willis—meaning that the only use-of-force expert the jury will now be hearing from is the defense use-of-force expert, Dr. Black.

I count that as another win for the defense, and another loss for the prosecution.

Use of “Looters,” “Rioters, “Arsonists” and “Victims” at Trial

The next issue covered by the hearing was a state in limine motion asking Judge Schroeder to prohibit the defense from referring to Rosenbaum, Huber, and Grosskruetz as “looters,” “rioters,” “arsonists,” or other pejorative terms.

One of the rationales presented by Prosecutor Binger for this request was that, after all, Judge Schroeder had prohibited the state from referring to these men as “victims,” and therefore it was only “fair” that the defense be prohibited from referring to them by pejorative terms.

These are not equivalencies at all, of course, but I’ll come back to that in a moment.

Ultimately Judge Schroeder denied the state motion to prohibit the defense from referring to the three men using these pejorative terms.

Unfortunately, this denial has been widely reported as Judge Schroeder ruling that the defense has a blanket license to refer to these men using those terms.

That is not the case.

In effect, Judge Schroeder simply said he’s going to allow both parties to use whatever terms can be supported by the evidence.  If there’s evidence that any three of the men were engaged in looting, rioting, or arson, then Judge Schroeder will allow those terms to be used. But there must be such evidence in order to make the terms permissible.  The defense does not have a blanket license to use such terms—first they have to show some evidentiary foundation.

Of course, the defense explicitly states that they have the evidence needed for such a foundation.

Incidentally, Judge Schroeder also said that if the prosecution can show evidence that clearly indicates Kyle committed the crime of murder in cold blood, he will allow the state to refer to Kyle as a “cold-blooded killer,” even over the objection of the defense.  So, the same standard is being applied to both parties.

And what about the Judge’s prohibition on the state using the term “victim” for the three men, isn’t he being hypocritical?

No, because the situations are not equivalent.  The jury isn’t being asked to decide beyond a reasonable doubt whether Rosenbaum, Huber, or Grosskreutz were looters, rioters, or arsonists.  That’s not the question before them. And because the jury isn’t being asked to make those decisions, they are simply descriptors, and not terms of legal consequence.

The jury very much is, however, being asked to determine if Kyle’s use of force against those men was lawful.  If it was lawful, that necessarily means that it was Kyle who was the “victim” of the three men’s unlawful force upon him, against which he lawfully defended himself.  On the other hand, the state argues that Kyle’s use of force was unlawful, in which case it would be the three men who were the “victims” of Kyle’s use of force.

The term “victim” then ties directly to the fundamental legal question that the jury is being asked to decide, and allowing its use to describe the three men would clearly be unfairly prejudicial to the defendant—hence, the prohibition.

Here’s the exchange, largely between Prosecutor Binger and Judge Schroeder on this portion of this issue:

Having lost on this line of argument for prohibiting the use of the terms “looters,” “rioters,” and “arsonist,” Prosecutor Binger once again shifted to an independent rationale for the same requested prohibition.

He argued that the conduct of the three men being described by these pejorative terms could not be relevant to Kyle’s use of force unless he had personally witnessed that conduct—and given that there was no evidence yet that he had, and unless he testified at trial there wouldn’t be any such evidence, that there was insufficient evidentiary foundation to make the men’s rioting, looting, and arson conduct—even if demonstrably true—admissible as relevant evidence.  Indeed, Binger argues, these characterizations of the three men are only intended to disparage them, as if that alone justified Kyle shooting them.

Here’s Binger’s argument on this point:

In response to this, the defense once again argues that the three men’s rioting, looting, and arson goes to the totality of the circumstances, and should be admissible for that purpose, on the same basis that Officer Franco’s testimony of her experiences at the scene that night is relevant.

Judge Schroeder then accurately notes, and cites Wisconsin Supreme Court case law, that allows for the admissibility of the character or reputation evidence of the victim of a use of force, usually prohibited, in the case of self-defense—even if that person’s character or reputation was not known to the defendant at the time he used force against that person.

In law, there are two grounds for offering such character or reputation evidence, generally of a violent character or reputation.

The first goes to the defendant’s state of mind, and therefore would require that the defendant possessed that knowledge at the time he used force.

But the second ground does not require that the defendant possessed that knowledge at the time of the use of force, because for this purpose it is focused not on the defendant’s state of mind, but on the state of mind of the person against whom the defendant used force.

This second reason exists if the question of who was the initial aggressor is in dispute.  In that case, that the purported victim had a violent character would be relevant to determining which of the parties was more likely to have been the initial aggressor:

I did want to carve out a particular portion of this part of the hearing, because it’s so fascinating.

Prosecutor: Armed Man Cannot Shoot Unarmed Man, Ever

Prosecutor Binger actually argues to Judge Schroeder that there are no circumstances under which an armed man can lawfully shoot an unarmed man, period.

I’ll count that as another win for the defense, and another loss for the state.

State Argues Aggressor Not An Issue in Self-Defense Cases

At this point, Prosecutor Binger rather goes off the rails, by actually arguing that the question of who was the initial aggressor is not an element of the legal defense of self-defense.  I know you don’t believe me, so of course I’ll include the relevant video here.  Yes, everyone in the courtroom was incredulous, and arguably even Judge Schroeder was outraged:

A Huge Missed Opportunity by the Defense

Unfortunately, this leads us to the one spot of poor performance by the defense at this hearing.

Attorney Chirafisi responds to Prosecutor Binger’s argument by circling back to reasonableness, and saying it is up to the jury to decide whether Kyle’s use of deadly force was reasonable, and so who was the aggressor is relevant to that issue of reasonableness.

In fact, who was the initial aggressor goes directly to the core element of Innocence, it is a required element of self-defense always.

Binger claims that the issue of the aggressor is merely a way to lose self-defense, not to prove self-defense. In fact it’s just two sides of the same coin.  A person who is the initial aggressor cannot claim self-defense, so the issue of the aggressor is always relevant—well, almost always.

And here was a real missed opportunity by the defense

The issue of who was the initial aggressor is always relevant—UNLESS the state is willing to concede the element of Innocence to the defense, and stipulate that it was the other party, and not the defendant, who was the initial aggressor.

In this context, this would require Binger to concede that it was Rosenbaum, Huber, and Grosskreutz who were the initial unlawful aggressors in each instance.  If he does that, he takes Innocence off the table, and who was the aggressor is no longer an issue in dispute.

And the defense should have offered Prosecutor Binger the opportunity to do precisely that.  You want to take the aggressor issue off the table? Fine. Concede the element of Innocence.

Either the state agrees to concede the element of Innocence, and take aggression of the table as an issue in dispute, or refuses to concede the element of Innocence, and leaves aggression on the table as an issue of dispute and the door open for the defense to admit evidence on the issue of aggressor.

A win-win for the defense—but they apparently failed to spot the opportunity.

After the defense counter-argument, Prosecutor Binger goes back and forth with the judge for some time, so this video clip is longer than most others embedded here (other than the use-of-force expert clip):

In any case, Judge Schroeder clearly finds that the question of initial aggressor is an issue in self-defense, and will allow relevant evidence on that issue.

So, although the defense missed an opportunity here, they did win on the ultimate issue, so I’ll count that as another win for the defense, another loss for the state.

Prosecutor Binger Says Arson No Big Deal

I did want to highlight the last couple of moments of that last clip, because it is so laughable.

Here we actually see Prosecutor Binger attempt to argue to Judge Schroeder that arson is no big deal, it’s just a bunch of kids being loud and disorderly.  Judge Schroeder actually responds to Binger, “I can’t believe some of the things you’re saying.”  After going back and forth on this for a couple of minutes, Judge Schroeder simply dismisses Binger as one might dismiss an ex-spouse—it’s pretty funny.

I’m going to go ahead and count this as another win for the defense, and another loss for the state.

State Asks to Prohibit Mention of Lawsuits by the Three Men

Next, the state asked Judge Schroeder to prohibit the defense from mentioning to the jury that the families of Rosenbaum and Huber, and that Grosskreutz himself, all had active civil lawsuits seeking damages from various parties over their losses the night of August 25, 2020.

The defense wants to reserve the right to mention these lawsuits if any of the family of the two dead men take the stand to testify, or if Grosskreutz himself takes the stand, because it goes to bias—if Rittenhouse is convicted, they essentially win their lawsuits automatically, so they have an incentive to lie.

Judge Schroeder ruled that the defense would be allowed to introduce evidence of the civil suits for that limited purpose under those specific circumstances.

That’s another win for the defense, another loss for the state.

Defense Permitted to Refer to “Kyle” In Front of Jury

Finally, the state asked Judge Schroeder to prohibit the defense from referring to their client as “Kyle”, and to require that everyone be referenced in a formal manner, such as “Mr. Rittenhouse,” “Mr. Grosskreutz,” and so forth.

The concern of the state, of course, is that referring to Kyle as “Kyle” may remind the jury of his youth—he was legally a child on the date in question—and garner him sympathy from the jury.

The response from Judge Schroeder was that he was, indeed, going to require that everyone be referenced in the formal manner—except for allowing the defense to refer to Kyle as “Kyle.”

The rationale for the exception is that he does not expect a lawyer, given the close relationship with the client, to only refer to the client in a formal manner.

Therefore the defense will be permitted to refer to Kyle as “Kyle” in front of the jury.

Another win for the defense, another loss for the state.

Final Score

And on that point, this most recent pre-trial hearing, this past Monday October 25 was no different—a very good day for the defense, and a very bad day for the prosecution.  The defense earned 100% wins, the prosecution 100% loses.

OK, folks, that’s all I have for you on this topic.

Until next time:

Remember

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.

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Comments

Great analysis, as always, Mr. Branca — thank you for this excellent post.

Indeed, the prosecutor’s manifestly idiotic statement that there is never a circumstance in which an armed person may appropriately shoot an unarmed person makes me question his mental faculties, his intellect and the quality of his legal education. Even as far as dishonest prosecution antics and rhetoric go, this is a breathtakingly and intrinsically stupid statement, and, the judge instantly recognized it as such.

    I wonder how the prosecutor would feel about his own words being applied to Jan6.

    There seems to be a certain fraction of Twitter who believes that when attacked, Kyle should have engaged in the manly art of fisticuffs with somebody who vastly outweighed him, and who was engaged in the act of violently attempting to take his rifle.

    We generally refer to these people as well-intentioned idiots. Or in this particular case, prosecutors.

      99.9% of people on Twitter are fucking morons, as evidenced by the fact that they swim in that sewage. Using Twitter is like cracking open your skull and letting every progressive moron in the world take a shit on your brain.

      And you’d have to be a fucking moron, or a gaslighting political hack, to say that what he did was not self defense. As you mention, he was being attacked by a grown man who outweighed him. Then there was the antifa cunt (I know, redundant) swinging a skateboard at him, and the anarchist cunt (I know, redundant) pointing a pistol at his head.

      It’s a miscarriage of justice that these charges were ever leveled at him.

Is this true? Did the FBI film the burning and looting?

From Newsmax:
“Binger said prosecutors have infrared surveillance footage of Rittenhouse”

https://www.newsmax.com/newsfront/kenosha-protest-shootings/2021/09/17/id/1036940/

Thank you again for the analysis, Mr. Branca. I am concerned here that, as in Minnesota on the Floyd case and in Georgia right now, that we’re going to have another runaway jury. While I appreciate that Kyle Rittenhouse has skilled legal counsel and that the prosecutor doesn’t have much of a case, I’m not sure it’s going to matter.

    Even with an otherwise proper jury, you can’t put the genie back in the bottle. There is genuine fear (which is not irrational at all) that juror members may be in danger if they fail to vote a certain way.

Good thing Cahill is not the judge here. It looks optimistic.

The real question is whether the jury is pissed off at the riotors or are they the run away jury the Chauvin got.

I see striking similarities in the prosecution in the two cases, so don’t discount the arrogance, ineptitude, lack of logic, questionable supporting facts and all that. Unless the judge just dismisses (which seem possible given what was seen here) it’s 80% probable he gets convicted; if this jury is FOR burning down the town, they are FOR lynching Kyle. If the jury is local and not happy about what happened, the verdict will come in to Kyle’s favor and the process will have been the punishment and hopefully he’s wiser for it.

The media don’t seem to care much because they know this is a lost cause and the guys are all white.

It’s funny because the girlfriend of hippy man bun is trying to say he defended us against the shooter but he took off after him with a skateboard and tried to fight him…that’s not defense, hippie chaser. I would expect such limited intellect from this community though. Now, off they go to the legalize it rally.

As background, one of the “other acts” evidence that Prosecutor Binger had sought, unsuccessfully, to inject into this trial involved an incident in which Kyle had come to the defense of his sister, who he saw engaged in a physical confrontation with another young woman.

Huh? Isn’t that exactly what a brother is supposed to do? Isn’t that what his parents taught him to do, and what most of the jurors probably teach their sons to do?

Binger wanted to introduce this event as evidence that Kyle had a vigilante-like attitude and a practice of injecting himself unnecessarily into other people’s fights.

Again, isn’t that what we call civic responsibility? Isn’t it what we demand people do, and what we condemn people for not having done in cases such as Kitty Genovese, or the recent rape on the Philadelphia train?

Also, in the video the prosecutor asserts that “A two-on-one fight is obviously inappropriate”. What on earth? What is this, a playground?! Even on the playground you expect a victim’s brothers and friends to come to his defense, and “if you start up with our little brother you start up with all of us”. But in the real world the entire concept of a “fair fight” does not exist, and it certainly doesn’t exist in the law! The law cares only about who is right and who is wrong, not how many they are. When five cops take down one bad guy, does anyone (other than BLM) complain?!

    Dathurtz in reply to Milhouse. | October 28, 2021 at 12:35 pm

    I am pretty sure that most leftists want a government monopoly on use of force. They don’t care about right or wrong or consistency. They care that the government be allowed to use force as it pleases and that individuals be unable to use force in any situation.

    They really are so different than us that I don’t see how we can live together.

    Consider the audience, to leftists a man protesting the school covering up the fact that your daughter was raped in the school restroom is domestic terrorism.

      DaveGinOly in reply to Andy. | October 28, 2021 at 6:52 pm

      If the prosecution did trot out that example, the jurors would be likely to approve of an action (defense of his sister) that’s somewhat analogous to the KR’s actions in Kenosha (which would be the prosecution’s point), causing the jurors to view his actions there in a more positive light than they might otherwise. I think the prosecution isn’t thinking that through.

    TheOldZombie in reply to Milhouse. | October 28, 2021 at 1:35 pm

    Yeah I never understood the whole “he came to the defense of his sister so that makes him a bad person aka vigilante” line of thought the state is pushing. I don’t understand how the state could expect a jury member to think it’s bad that a brother physically defended his sister in a fight. No jury member would think doing such a thing would make a person a vigilante.

    stylin19 in reply to Milhouse. | October 29, 2021 at 2:02 pm

    on the surface, the “sister fight” evidence would be a good thing for the defense but I wonder…does it open the door for the prosecution to let other things in? Why take that chance?

It seems that KR was not charged with taking a shot at the head-kicker. Is that correct? If so, why wasn’t he charged for taking that shot?

    TheOldZombie in reply to DaveGinOly. | October 28, 2021 at 1:44 pm

    Always wondered about that one. Does the state even know who the head-kicker is? Also looking at the video you see someone before head-kicker guy approach Kyle while Kyle is on the ground but Kyle goes to raise his rifle and that guy clearly backs off and Kyle doesn’t do anything. If Kyle is the vigilante the state wants to make him out to be why didn’t Kyle shoot that guy?

      DaveGinOly in reply to TheOldZombie. | October 28, 2021 at 2:11 pm

      KR also momentarily confronts another man right after he shoots the last attacker. That man raises his hands and steps back, and KR does not take a shot. He exercised an extreme level of discipline and clear-thinking for someone so young and in such a chaotic and dangerous situation. For someone without formal training and zero experience with such situations, his composure was quite remarkable.

    LongTimeReader in reply to DaveGinOly. | October 28, 2021 at 7:18 pm

    I believe that’s what count 5 is in KR’s charges.
    Count 5: FIRST DEGREE RECKLESSLY ENDANGERING SAFETY, USE OF A DANGEROUS
    WEAPON
    The above-named defendant on or about Tuesday, August 25, 2020, in the City of Kenosha,
    Kenosha County, Wisconsin, did recklessly endanger the safety of an unknown male, under
    circumstances which show utter disregard for human life, contrary to sec. 941.30(1), 939.50(3)(f),
    939.63(1)(b) Wis. Stats., a Class F Felony, and upon conviction may be fined not more than
    Twenty Five Thousand Dollars ($25,000), or imprisoned not more than twelve (12) years and six
    (6) months, or both.

      That’s really lame. So he endangered this person’s safety by brandishing a weapon at him, and the jury is supposed to conclude that it was simply sheer good luck that the gun didn’t go off and kill the guy?! It’s pure coincidence that all the attackers who backed off didn’t get shot, and only the ones who kept attacking did. There couldn’t possibly be a causal connection between backing off and not being shot.

    henrybowman in reply to DaveGinOly. | October 28, 2021 at 10:17 pm

    My understanding is that Rittenhouse took three shots and made three hits. He pointed his rifle at a (the?) head-kicker, at which point, that head-kicker backed off and made himself scarce.

      Without double-checking, I vaguely remember the first shooting had several shots fired in an extremely short period of time, then he was attacked three more times while he was running to the police. Each of the three additional attacks was discouraged by a single shot, one fatal, one miss (and a smarter thug promptly running away), and one to the gun-arm (literally) of the last armed criminal, nearly disarming him (again, literally). I’m unsure of the number of hits vs. shots fired on the first assault against him, but I’m aware of several police shootings with far less accuracy overall.

      It takes enormous guts and emotional stability to evaluate and stop an attacker, and far more to stop shooting after the attack is over. If Kyle had shot the fleeing attacker, or shot any of his attackers before they were credible threats, we would be seeing an entirely different trial, and far less to his advantage.

Interesting that the prosecutor says that he doesn’t think there is any circumstance where a shooter is justified in shooting an unarmed person. He didn’t say Wisconsin law or case law prohibits this, rather he said he personally doesn’t think its ever justified. As an officer of the court, his job is to resolve legal disputes over laws and facts. When he decides what the laws are or the facts are, according to his personal political narrative, then he will never be able to properly settle legal disputes. His cases will go before juries, instead of being settled in pre-trial resolution with the opposing attorney. That is what we are seeing. The judge should recognize he is seeking a political judgement, not a judgement over issues of law and evidence.

    DaveGinOly in reply to ruralguy. | October 28, 2021 at 12:57 pm

    Effectively, the judge does realize this is a political trial. Practically, that issue is being addressed by his rulings. He’s not allowing the prosecution to shape the narrative with opinions and appeals to anything other than the law. I think that’s probably the best he can do, unless the defense asks for a dismissal due to a lack of evidence or a directed verdict.

    TheOldZombie in reply to ruralguy. | October 28, 2021 at 1:37 pm

    I bet if someone went through that prosecutors previous cases they could find instances where he didn’t bring charges against someone for shooting an unarmed person.

I have a feeling the judge didn’t curse out the prosecutor only because he was in court. If they were in a breakroom having lunch the judge would have ripped into the prosecutor for his arson comments. 🤣

This looks like it will be another Zimmerman trial where the states witnesses essentially turn into defense witnesses.

I really can’t wait for Gaige Grosskreutz to take the stand. That’s the guy that got shot in the arm. He’s one of those nutty leftists whose anti-police. He had even been recently arrested for going around a police parking lot and taking photos of officers cars and plates. He’s also suing the city for what happened that night. Will be interesting to see his testimony. Will he be stupid and hostile on the stand?

My only worry here is a jury that gets scared of what might happen if they bring back a not guilty verdict. Hopefully they will see past that and not let that fear cloud any decision they make.

    How many BLM signs are up around Kenosha?

    randian in reply to TheOldZombie. | October 28, 2021 at 7:10 pm

    Wasn’t Grosskreutz the guy that was pointing a gun at Rittenhouse? The first thing I’d ask him, after showing video of him committing aggravated assault, is if he has an immunity agreement with the prosecution. I’d want the jury to ask themselves why Grosskreutz hasn’t been charged with a crime for his conduct.

Third, Judge Bruce Schroeder is a rigorously fair, old-school trial court judge (and himself a former prosecutor) who appears to lack any political interest in this case whatever—and, most important, has little if any tolerance for theatrics and game playing in his courtroom.

Thanks Mr. Branca… I have grown so cynical about judges… I am relieved to hear that you believe Judge Schroeder to be fair… That is just so refreshing.. Hope for justice, it is a rare commodity now a days.

John Sullivan | October 28, 2021 at 4:11 pm

I coach a middle school mock trial team, where the fact pattern is essentially the same every year–self defense. When I coach the defense side, I always tell the lawyers to object whenever the prosecution uses the word victim, because it is up to the jury to decide whether the deceased was the victim. The presiding judges from the Bronx always sustain the objection.

    Milhouse in reply to John Sullivan. | October 28, 2021 at 9:59 pm

    The same should be true when discussing those making accusations of rape or sexual abuse. Whether they are victims is the very thing that must be determined, so to use that term is to prejudge the case. And to say that one must not question victims is circular reasoning, aka begging the question.

I have a question about the vagueness of the gun charges. Apparently Kyle Rittenhouse was charged under the law with a crime that can only be committed by a minor. The prosecutor has chosen to try him as an ADULT with a crime that can only be committed by a minor. It should be in juvenile court- not with an avalanche of other charges. Shouldn’t that be addressed up front at the very beginning of the trial with a motion to have it dismissed with prejudice since it was brought to the wrong court? I’m not a lawyer, but I fail to see how he can be charged in an adult court for a crime that an adult cannot commit….

The prosecutor is free to make that decision with a crime that can be committed by anyone regardless of age- but I think that freedom to do so is constrained when by definition an adult cannot commit the crime.

    Something that might also be interesting. Has any other minor in the state ever been charged with violating that particular law with an otherwise legal rifle? (i.e. not a short-barreled rifle requiring registering under the NFA)

    I suspect the answer is “no” or at best “Yes, but the prosecution dropped the charges when they found out how wobbly and vague that statute is”

    Milhouse in reply to gospace. | October 28, 2021 at 10:03 pm

    No, I”m pretty sure it doesn’t work that way. Logically it shouldn’t. The decision to try a minor in the regular justice system rather than the juvenile system is based on the accused’s assessed capacity to understand, and the heinousness of the alleged crime. It’s got nothing to do with the scope of the offense charged. The law in question here applies to anyone under 18/16/14/12, regardless of their mental capacity or moral culpability.

      TargaGTS in reply to Milhouse. | October 29, 2021 at 7:46 am

      That may be, but can you think of another case where a minor defendant, charged with a crime that ONLY applies to minor children, was convicted of that crime while being tried as an adult?

      I bet that never happens for the very reasons the OP gets into with his comment.

Looking up militia law, for other reasons, and without including Kyle Rittenhouse an large number of articles referring to him as part of a private militia and how that’s unlawful in Wisconsin.

Interestingly enough, Wisconsin’s state constitution doesn’t define the militia as every other state constitution I’ve looked at so far does. It says the legislature can decide who’s in the militia. And the legislature has decided that the State Militia is the NAtional Guard, and the the governor MAY establish a State guard. NY, TX, and a few other states have state guards. WI does not. There is no provision or definition in WI law of unorganized militia. Therefore the only unorganized militia in WI is defined by Federal law:

(a)The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b)The classes of the militia are—
(1)the organized militia, which consists of the National Guard and the Naval Militia; and
(2)the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
So Kyle, and all other 17 year old males, are members of the federal unorganized militia.

Now Kyle is from Illinois. Illinois has the most expansive militia definition I’ve seen- and I don’t think it’s really possible to get any more expansive. From their constitution:

SECTION 1. MEMBERSHIP
The State militia consists of all able-bodied persons
residing in the State except those exempted by law.

Not applicable in Kenosha, but I find it interesting two neighboring states with such different laws and constitutions.

The big thing I see in all the “articles” on Kyle and the militia is that he should be prosecuted for being a member of an outlawed private militia. He was not. He was part of the Federal unorganized militia self organizing to defend property and life. And the unorganized militia is self arming- which should take precedence over any conflicting state law. But…

When does the unorganized militia come into play? A bunch of times every year in multiple states when people come together for search and rescue missions for missing or lost children or adults. They’re not armed- but they’re militia.

When can the unorganized militia self organize and be armed? That’s not defined anywhere I can find. I know that some western states still organize posses- where the sheriff either calls for or drafts people to serve. Two times I know of- in one of the riots at Auburn Prison in NY where the inmates seized control local citizens showed up- armed and uninvited, and were used to man the walls while the guards dealt with rioters inside. I know it’s part of the history there, but can’t find it. Then there’s the one ignored by all schools everywhere- The Battle of Athens in 1946 in which the unorganized militia not only self organized but pretty basically overthrew the existing local government. Was it legal? In the same way the American Revolution was legal- they won. No one was prosecuted for anything.

Are individuals allowed to protect their property and family and livelihood from arsonists and rioters? Are they allowed to be armed in doing so? Yes. If the government is engaged in a deliberate spectacular failure to enforce the law and protect private property and a bunch of friends and neighbors on basically spur of the moment get together to protect all of their properties and stand together- are they an unlawful private militia or a legal gathering of the unorganized militia? I honestly think no court in the USA wants anyone to even think about bringing this up. The local Kenosha government and the Wisconsin state government were all derelict in their duties to preserve the peace and ensure good order in the streets. At some point- the people have to act. But who defines that point?

    Milhouse in reply to gospace. | October 28, 2021 at 10:07 pm

    The big thing I see in all the “articles” on Kyle and the militia is that he should be prosecuted for being a member of an outlawed private militia.

    Can a private militia be outlawed? I wouldn’t think so.

      gospace in reply to Milhouse. | October 28, 2021 at 10:22 pm

      But pretty much all states do. With some exceptions. This is one of them: https://www.firsttroop.com/about-us I’ve met up with them at the BSA Valley Forge Encampment. I’m pretty sure NY has 2 or 3 similar units- but it seems google and NY don’t want you to be able to find them. One I’m certain is in Manhattan.

      henrybowman in reply to Milhouse. | October 28, 2021 at 10:22 pm

      It depends what they do and who they answer to. For example, straight from my state constitution:

      Section 26. The right of the individual citizen to bear arms in defense of himself or the state shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men.

Is it just me or is the prosecution really really afraid of this Police Officers testimony. I mean they changed their argument at least 7 times to keep her from testifying.

I mean how damning can her testimony be? It is obvious from the first video that the mood and situation in the town was FUBAR that night.

    henrybowman in reply to Gremlin1974. | October 28, 2021 at 10:26 pm

    After shooting his three attackers, Kyle Rittenhouse walked over to a group of police in order to give himself up.
    The officers told him to go home to Illinois.
    That speaks volumes. If i were the prosecution, I would bend over backwards to keep that from being entered into the official record.

In relation to this thread:
https://legalinsurrection.com/2021/10/kyle-rittenhouse-case-is-the-gun-charge-a-sinister-attack-on-kyles-self-defense/

Just prior to the dumpster-fire gas station events Kyle had attempted to move northward across 60th and a newly-established police line as they pressed ‘protesters’ south away from the courthouse on 56th. He was turned back by the police, but that would have taken him back to his compatriots at the northerly car lot at 59th and AWAY from the crowd of people (such as Rosenbaum, Grosskreutz, Huber, and Ziminksi). That would seem odd behavior – going to where there were no threats and behind but in close proximity to a police line – if his goal was to induce an attack he could use an excuse to shoot someone over.

I just watched a $10K analysis for which I paid $0. Amazing effort. Many thanks to AB and LI.

LongTimeReader | October 30, 2021 at 9:40 am

Any reasoned opinions on why Huber’s shooting garnered an intentional charge while Rosenbaum’s was a reckless one? They both grabbed Rittenhouse’s rifle.

Richard Aubrey | October 30, 2021 at 7:37 pm

Long Time Reader. Did Arberry grab somebody’s weapon?

    LongTimeReader in reply to Richard Aubrey. | October 30, 2021 at 8:16 pm

    Do you mean Arbury? I believe he did but any of those charges are from a different case. I am just curious on the reasoning behind charging KR for two different crimes when the actions of those shot, and seemingly KR’s, actions were the same.

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